FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
READYLINK HEALTHCARE, a Nevada
corporation; BARRY TREASH, an
individual,
Plaintiffs-Appellants,
No. 04-55890
v.
DAVID JUSTIN LYNCH, an D.C. No.
CV-04-01265-NM
individual; DAVID JUSTIN
ORDER
LYNCH AND ASSOCIATES, a
California professional law
corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Nora M. Manella, District Judge, Presiding
Argued and Submitted
February 17, 2006—Pasadena, California
Filed March 14, 2006
Before: Betty B. Fletcher, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
ORDER
B. FLETCHER, Circuit Judge.
We certify to the California Supreme Court the question set
forth in Part II of this order. All issues in this case have been
decided save the issue certified herein. As to it, all further
2629
2630 READYLINK HEALTHCARE v. LYNCH
proceedings are stayed pending final action by the California
Supreme Court.
I. CAPTION AND COUNSEL
A. The caption of this case is as follows:
READYLINK HEALTHCARE, a Nevada corporation;
BARRY TREASH, an individual,
Plaintiffs - Appellants,1
v.
DAVID JUSTIN LYNCH, an individual; DAVID JUSTIN
LYNCH AND ASSOCIATES, a California professional law
corporation,
Defendants - Appellees.
B. The names and addresses of counsel are:
For Readylink Healthcare and Barry Treash: Leo A. Baut-
ista, Lewis Brisbois Bisgaard & Smith, LLP, 221 N. Figueroa
Street, Suite 1200, Los Angeles, CA 90012
For David Justin Lynch and David Justin Lynch & Asso-
ciates: Frederick S. Reisz and Jeffrey F. Allen, Meyers &
McConnell, 11859 Wilshire Boulevard, 4th Floor, Los Ange-
les, CA 90025.
II. QUESTION OF LAW
Pursuant to Rule 29.8(a) of the California Rules of Court,
we respectfully request the Supreme Court of California to
decide the certified question presented below. There is no
controlling precedent answering the certified question, the
resolution of which may be determinative of this appeal. Our
phrasing of the question should not restrict the Court’s con-
1
Plaintiffs-Appellants should be designated Petitioners in the event that
certification is granted.
READYLINK HEALTHCARE v. LYNCH 2631
sideration of the issues involved. We agree to accept the deci-
sion provided by the California Supreme Court. The question
of law to be decided is:
Does the California Supreme Court’s decision in
Gates v. Discovery Communications, Inc., 34 Cal.
4th 679, 21 Cal. Rptr. 3d 663, 101 P.3d 552 (2004),
cert. denied, 126 S. Ct. 368 (2005), overturning Bris-
coe v. Reader’s Digest Association, Inc., 4 Cal. 3d
529, 93 Cal. Rptr. 866, 483 P.2d 34 (1971), and find-
ing no invasion of privacy, under the First Amend-
ment, in the publication of facts about past crimes
obtained from public records, apply only to publica-
tion by media defendants? Can there be liability
under an invasion of privacy theory where a non-
media defendant, with a commercial interest in or a
malicious motive for publishing facts about a plain-
tiff’s past crimes, does so? Under the commercial
speech doctrine, is the speech of a non-media defen-
dant with a commercial interest in or malicious
motive for publishing facts entitled to less protection
under the First Amendment than that of a media
defendant?
III. STATEMENT OF FACTS
Readylink Healthcare and Barry Treash (Appellants) filed
this action against David Lynch and his law firm, David
Lynch & Associates on February 25, 2004. Appellants
asserted several claims against Appellees. The only poten-
tially viable claim is Appellants’ claim for invasion of pri-
vacy. See Shulman v. Group W Productions, Inc., 18 Cal. 4th
200, 214 (1998) (recognizing the tort of public disclosure of
private facts).
Readylink Healthcare is a licensed healthcare service pro-
vider, a staffing company linking nurses to hospitals. Barry
Treash is the founder, sole shareholder, and an officer of Rea-
2632 READYLINK HEALTHCARE v. LYNCH
dylink. Appellee David Lynch represented former Readylink
employee Jerome Cotton in a suit brought by Readylink for
misappropriation of trade secrets and breach of contract. This
litigation resulted in the entry of a temporary restraining order
and preliminary injunction against Cotton, his new employer,
and their agents (including Lynch), prohibiting the use of
Readylink’s trade secrets and confidential information.
Appellants claim that after this initial litigation, Lynch
“commenced an irrational campaign of hatred against Rea-
dylink and its management, taking every opportunity to cause
it injury.” Appellants’ Opening Brief at 8. Appellants allege
that Lynch met with Readylink employees; that he was inves-
tigating the possibility of forming a nurse placement agency
that would compete with Readylink; and that he was encour-
aging Readylink employees to bring claims against the com-
pany for its pay practices.
Readylink filed an action in Los Angeles County Superior
Court in December, 2003, alleging that Lynch received and
concealed stolen trade secrets, used those trade secrets to
solicit clients, and defamed and disparaged Readylink’s busi-
ness practices. The claims made in the Superior Court do not
overlap with any claims made in federal court. Appellants
allege Lynch had a page on his website devoted to Readylink,
soliciting claims against the company and “listing several cat-
egories of illegal activities which Lynch stated he could han-
dle for his potential clients against Readylink. . . .”
Appellants’ Opening Brief at 10. Listing among his Areas of
Concentration was “Any case with merit against Readylink
Healthcare — I’m not afraid of Ann and Barry!” “Any case
with merit against Readylink Healthcare” was itself a link
that, when clicked, took the user to a page soliciting claims
against Readylink:
Here are some of the matters I can handle for you
against Readylink
READYLINK HEALTHCARE v. LYNCH 2633
“Fear is useless. It doesn’t build bridges and it
doesn’t bake bread. It doesn’t accomplish any-
thing.” Don’t be scared of Readylink!
1. Defending suits brought against you. I represent
Jerome Cotton and William Grove.
2. Worker Compensation — Physical injuries and
stress claims
3. Unfair Competition under Business and Profes-
sions Code §17200 . . .
Exhibit A, Complaint.
Following Readylink’s filing its action in Superior Court,
Appellants allege that Lynch “augmented his website with
more attacks on Readylink.” Complaint ¶ 25. Lynch added a
page that could be accessed by clicking on “Barry,” high-
lighted in a different color, in the phrase “I’m not afraid of
Ann and Barry!” That additional page stated,
Barry Treash is a CONVICTED FELON!
The Public Records of the United States District
Court for the Central District of California, more
particularly, Case No. CR 84-298, reflect that on
July 24, 1984, Barry Lynn Treash, date of birth
December 25, 1944, was convicted of multiple felo-
nies. He served time in Federal Prison and was
released in 1988. He was then on probation until
1993. The documents speak for themselves. I urge
everyone to read these documents to make an
informed decision about Barry’s reputation and
whether or not to do business with him.
Exhibit A, Complaint.
2634 READYLINK HEALTHCARE v. LYNCH
Lynch’s website provided links to downloadable versions
of the “Court Docket,” “Indictment,” “Transcript of Convic-
tion and Sentencing,” and “Prison Record” of Barry Treash.
Id.
Plaintiffs filed suit in federal court after Lynch posted
Treash’s conviction information on his website. Readylink
claims that “when juxtaposed against the other statements on
the website regarding Readylink,” Appellants’ Opening Brief
at 12, these statements falsely represent that Readylink is cur-
rently involved in illegal activity because of Treash’s convic-
tion twenty years ago. Appellees do not dispute having posted
the statements that are the subject of the lawsuit on their web-
site; nor do they dispute that the statements, as recited by
Appellants, are accurate. “The statements are truthful recita-
tions of public records or are the public records themselves.”
Brief of Appellees at 7.
Appellees filed a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), arguing that Appellants’ case “failed as a matter
of law because the statements that Lynch published were
truthful recitations of information contained in public records
whereas the causes of action required a showing that the state-
ments were false, misleading, outrageous, or otherwise unlaw-
ful.” Brief of Appellees at 8. As to the invasion of privacy
cause of action, Appellees assert that this action had to fail
because the information published was truthful and is con-
tained in the public record.
Appellants responded, arguing that although the statements
were in the public record, they were “not newsworthy and
thus invaded Treash’s right to privacy under California law.”
Appellants’ Opening Brief at 13. The district court granted
Appellees’ motion to dismiss as to all of the claims asserted
against them. The district denied Readylink leave to amend
and dismissed the action. Readylink and Treash now appeal.
READYLINK HEALTHCARE v. LYNCH 2635
IV. THE NEED FOR CERTIFICATION
We respectfully request the California Supreme Court to
decide the certified question of law because the decision
could determine the outcome of this appeal, and because the
decisions of the California appellate courts provide no con-
trolling precedent on the question. See Cal. R. of Ct.
29.8(a)(1) and (2). Furthermore, whether Gates v. Discovery
Communications, Inc., 34 Cal. 4th 679, 21 Cal. Rptr. 3d 663,
101 P.3d 552 (2004), cert. denied, 126 S. Ct. 368 (2005),
applies to non-media publishers is an issue of significant pub-
lic policy importance. See Kremen v. Cohen, 325 F.3d 1035,
1037 (9th Cir. 2003) (“The certification procedure is reserved
for state law questions that present significant issues, includ-
ing those with important public policy ramifications, and that
have not yet been resolved by the state courts.”). Following
is a summary of the relevant case law and the parties’ argu-
ments with respect to this issue.
Appellants rely on the California Supreme Court’s decision
in Briscoe v. Reader’s Digest Association, 4 Cal. 3d 529, 93
Cal. Rptr. 866, 483 P.2d 34 (1971), to establish their invasion
of privacy tort claim. They argue that under Briscoe, the pub-
lication of facts of past criminal activity, even when drawn
from the public record, may constitute an invasion of privacy.
Appellees respond by citing the California Supreme Court’s
decision in Gates, explicitly overruling Briscoe. Gates held
that decisions of the United States Supreme Court “have
fatally undermined Briscoe’s holding that a media defendant
may be held liable in tort for recklessly publishing true but
not newsworthy facts concerning a rehabilitated former crimi-
nal, insofar as that holding applies to facts obtained from pub-
lic official court records.” Gates, 34 Cal. 4th at 692, 21 Cal.
Rptr. 3d at 672, 101 P.3d at 559-60 (internal citation omitted).
The California Supreme Court followed Cox Broadcasting
Corp. v. Cohn, 420 U.S. 469 (1975), and “conclude[d] that an
invasion of privacy claim based on allegations of harm caused
by a media defendant’s publication of facts obtained from
2636 READYLINK HEALTHCARE v. LYNCH
public official records of a criminal proceeding is barred by
the First Amendment to the United States Constitution.”
Gates, 34 Cal. 4th at 696, 21 Cal. Rptr. 3d at 675, 101 P.3d
at 562.
Appellants counter by arguing that Gates does not control
here. Gates and Cox Broadcasting preclude an invasion of
privacy claim only where the publisher is a media organiza-
tion or a member of the press. Here, Appellants contend that
because Lynch is not a media organization, their claim that
their right of privacy has been violated by Lynch’s publica-
tion of these facts remains viable. To further counter Appel-
lees’ argument, Appellants point out that public policy
protecting the press’s role in educating the public has no
application to a private person’s publication, motivated by
malice or intent to gain commercial advantage. Appellants
argue that there is no public-policy value in protecting Appel-
lees’ ability to publish information derived from the public
record about the criminal record of Appellant Treash.
Gates, Cox Broadcasting, and Briscoe all involve publica-
tion by media defendants. California case law does not
address whether an invasion of privacy claim against a private
person is precluded by the First Amendment where the speech
was motivated by malice or intent to gain commercial advan-
tage. Whether Gates applies broadly to all accurate publica-
tion of facts obtained lawfully from the public record,
including situations where the publisher is not a member of
the press and where the motivation for that publication was
malice or intent to gain commercial advantage, has not been
decided by the California courts.
Because the determination of the scope of Gates could
determine the outcome of this case, because there is no con-
trolling precedent, and because this overlap between the First
Amendment and privacy law presents issues of public-policy
importance, we respectfully ask the California Supreme Court
to decide the certified question presented here.
READYLINK HEALTHCARE v. LYNCH 2637
V. ACCOMPANYING MATERIALS
The clerk of this court is hereby directed to file in the Cali-
fornia Supreme Court, under official seal of the Ninth Circuit
Court of Appeals, copies of all relevant briefs and an original
and ten copies of this request with a certificate of service on
the parties, pursuant to California Rules of Court 29.8(c) and
(d).
IT IS SO ORDERED.
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